But why did Moore's judge refuse to answer the jury's questions? And why was the jury forbidden from discussing parole?

Paula Hannaford of the National Association of State Courts is one of the country's leading authorities on juries. She says judges often refuse to answer jurors' questions because they fear any deviation from standard, well-rehearsed instructions could open a verdict or a sentence to reversal on appeal. Judges don't want to have to retry cases. And, in states where judges are elected, they don't want their opponents harping on their reversal rates.

Hannaford says most jurors take their jobs extremely seriously. And she believes denying them information about the meaning of basic legal concepts undermines the integrity of the justice system.

"It's not fair," says Hannaford, "to the jurors to ask them to be making these kind of decisions without providing them with an opportunity to truly understand what the law is and what the criteria are that they are supposed to be making their decisions (with). And if they are fundamentally misunderstanding concepts, it is only an arbitrary decision. The justice system that is supposed to be meting out justice, is not in fact doing that at all."

Hannaford believes people are being wrongly sentenced to death because jurors don't understand the law. She says courts often refuse to allow discussions of parole because parole is an executive branch decision, and courts can't predict when or if a defendant may be released. But she believes, sentencing would be fairer if jurors were told, based on the law and experience, what the likelihood is of release.

Misconstruction of the Law

In the spring of 1999, Sandra Day O'Connor received an enthusiastic welcome from an audience of lawyers, judges and court administrators gathered in Washington for a National Conference on Public Trust in the Justice System. In her remarks, which went largely unreported, the Associate Supreme Court Justice said that jurors were handing down verdicts without a clue as to what was going on.

"Too often, jurors are allowed to do nothing but listen passively to the testimony," said Justice O'Connor, "without any idea what the legal issues in the case are, because they aren't told at the beginning of the case. And at the end of the case, they are finally read a virtually incomprehensible set of instructions and sent into the jury room to reach a verdict in a case they may not understand much better than they did before the trial began."

But six months after that speech, O'Connor joined Chief Justice Rehnquist in a 5-4 opinion which stated quote: "A jury is presumed to follow its instructions and to understand a judge's answer to its question."

Beatrice Hayward didn't understand the instructions. She wanted to know if the law required a death sentence. But the judge refused to answer her question.

Hayward said, "We wanted to make sure if we were doing the right thing, and if this was the only way we could go was the death penalty."

That was no small matter, because the court's 1976 Gregg decision reinstating the death penalty ruled that automatic death sentences were unconstitutional. But Hayward wasn't told that. She and two other jurors believed they were required to sentence Virginia cop-killer Lonnie Weeks to death. Ted Trynock, a union official, was one of them.

"We either had to find him guilty or innocent," says Trynock. "If he was innocent, he walked. If he was guilty he was gonna die. And that's it. We weren't there to discuss the penalty. We were there just to find out whether he was guilty or innocent. And we all understood that it was the death penalty if he was guilty."

But the Gregg decision says the jurors were there to discuss the penalty and that they were required to consider a life sentence. By the time Trynock's misconstruction of the law became known, Weeks had already been put to death by lethal injection.

But the Weeks case is not some weird aberration. The Capital Jury Project, which has interviewed more than 1200 jurors in 350 capital murder trials, found that more than half
of the jurors it interviewed thought death was mandatory for premeditated murder, multiple victim murders, and for repeat murderers. All of those jurors made life or death decisions. And all of them misunderstood the law.